'1. Vide a decision delivered on 28th November 2024, this Court revoked the grant issued on 8th November 2021 to the Petitioner/Applicant on the ground that she was not the daughter of the deceased.
2. Being dissatisfied with the said decision, the Petitioner/Applicant filed the Notice of Motion dated 10th February 2025 as a pro se litigant. Vide the said application, she sought two orders, to wit that:-
1. That the honourable Court be pleased to review its judgment made on the 28th day of December 2024 (sic!);
2. That the costs of this application be in the cause.
3. The basis for her application is that she had discovered a new and important matters which were not within her knowledge at the time the summons for the revocation of the grant was heard and the decision made, and that she would be greatly prejudiced unless the decision was reviewed.
4. The new documents are an alleged last will and testament of Alfred Liwali Karisa, the deceased person whose estate is the subject of these proceedings, and various ownership documents which the Petitioner/Applicant aver came to her possession on account of her status as the daughter of the deceased. Although it wasn’t expressly stated, it would appear to this Court that the Petitioner/Applicant was of the view that there were errors apparent on the face of the record and or that there were otherwise sufficient reasons to review the judgment of the Court.
5. The application was opposed. The advocates for the Applicant/Respondent filed grounds of opposition dated 25th February 2025, in which it was averred that, having filed a Notice of Appeal, the Petitioner/Applicant could not seek to review the judgment of the Court. In their view, the application was incompetent, an abuse of the Court process, and a waste of judicial time and ought therefore to be struck out.
6. The Applicant/Respondent also filed a replying affidavit sworn by Mr Stephano Furaha Karisa on 25th February 2025, which, in addition to what has been stated, averred that the alleged will lacked formal validity, was not properly drawn, and that the opinion of the doctor could not form the basis for review.
7. In response to the documents filed by the Applicant/Respondent, the Petitioner/Applicant filed a Supplementary Affidavit sworn on 4th March 2025 in which she reiterated that she had obtained new and important evidence that she did not have during the hearing and that the Court proceedings, as reflected in the Judge’s handwritten notes, did not capture all the evidence adduced. She prayed that the application had merit and ought to be allowed.
8. The application was canvassed by way of written submissions. I will briefly outline the submissions of each party below.
9. The submissions of the Petitioner/Applicant are dated 25th March 2025. She urged that the application be allowed because there had been a discovery of new and important evidence that wasn’t available during the trial.
10. The Petitioner/Applicant urged that the Court did not fully consider the evidence of her witness, Mr Ephraim Katana Safari. Ms Kimani submitted that the Court gave undue and unscientific emphasis on the DNA report. She averred that a doctor had reviewed the report and established that the Court was wrong in reaching its conclusion based on the said report. Ms Kimani submitted that the question of whether she could apply for review after filing a Notice of Appeal was a technical matter. She drew the attention of the Court to Article 159 (2) (d) of the Constitution and averred that this Court ought to emphasize substance over form in judicial proceedings.
11. Ms Chichi Kimani therefore prayed that the application be allowed.
12. The submissions of the Applicant/Respondent are dated 18th March 2025. The counsel for the Applicants/Respondents, Mr Lawrence Obonyo, submitted that, having filed a Notice of Appeal, the Petitioner/Applicant could not apply for review. Counsel relied on the case of CHAIRMAN BOARD OF GOVERNORS HIGHWAY SECONDARY SCHOOL v WILLIAM MMOSI MOI [2007] KECA 85 (KLR) for the proposition that an appeal and an application for review could not be pursued concurrently.
13. Counsel urged that the application did not meet the threshold for review. Regarding the alleged will, it was averred that its provenance was questionable as the circumstances under which it was obtained had not been explained. The same, counsel urged, wasn’t drawn by an advocate, was not stamped, and was an afterthought.
14. It was submitted that allowing the application would go against the principle that litigation must come to an end. Mr Obonyo further stated that the applicant had not annexed a copy of the decree or order sought to be reviewed. For the foregoing reasons, he urged that the application be dismissed and that the Applicants/Respondents be awarded costs.
15. This is an application for review. The Petitioner/Applicant seeks to have the Court review its judgment. The Court’s review jurisdiction flows from section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. I shall set out below what each of the said provisions provides.
16. Section 80 of the Civil Procedure Act states as follows:-
“Any person who considers himself aggrieved:-
(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is allowed by this Act,
may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
17. The above provision of the Civil Procedure Act is given effect by Order 45 Rule 1 of the Civil Procedure Rules, which provides as follows:-
“Any person considering himself aggrieved:-
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
18. What can be distilled from the foregoing is that a review of the decision of the court may be made on the following grounds:-
(a) discovery of new and important evidence which was not within the knowledge of the applicant or could not be produced at the time the orders were passed;
(b) on account of a mistake or error apparent on the face of the record; or
(c) for any other sufficient reason.
19. Why is the review jurisdiction necessary? The Court of Appeal in the case of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR) stated as follows:-
“The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgement of frailties of human nature and sometimes possibility of perversion that may lead to miscarriage of justice. In some jurisdictions, courts have felt the need to cull out such power in order to overcome abuse of process of court or miscarriage of justice. In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason but section 80 gives the High Court greater amplitude for review.”
20. Before looking at the merits of the application, I must address the objection raised by the Applicant/Respondent in the Grounds of Opposition. The objection is to the effect that a party who has filed an appeal may not file an application for review. Whereas this is technically true, as the provision of Order 45 Rule 1 of the Civil Procedure Rules is explicit, a question that arises in this case is whether filing a Notice of Appeal amounts to lodging an appeal. In my opinion, the proposition by the Applicant/Respondent is incorrect.
21. I am guided in my aforesaid finding by the decision of the Court of Appeal in the case of CHAIRMAN BOARD OF GOVERNORS HIGHWAY SECONDARY SCHOOL v WILLIAM MMOSI MOI (supra), where their Lordships stated as follows:-
“ An aggrieved party under Order XLIV of the Civil Procedure Rules can only apply for the review of a decree or order either where ''no appeal has been preferred'' or where ''no appeal is allowed”. An appeal is allowed on orders made under Order 9A r 2 Civil Procedure Rules, as in this case, and indeed the Board filed a notice of appeal under rule 74 of the rules to challenge the orders. A notice of appeal is, however, only a formal notification of an intention to appeal, and it cannot be said that the aggrieved party had “preferred” an appeal at that stage and was thus precluded from exercising the option of review. The issue as to whether a respondent, having filed a notice of appeal which had not been withdrawn, had a right to apply for review was answered in the affirmative by this Court in Yani Haryanto v E. D & F. MAN (SUGAR) Ltd. Civil appeal No. 122/92 (UR). In that case, the application for review under Order 44 of the Civil Procedure Rules was filed two years after the filing of the notice of appeal. After examining the relevant provisions of the law, the court stated:-
“The Court of Appeal for Eastern Africa in the case of Motel Schwetser v Thomas Cunningham & Another (1955) 22 EACA 252, held that an appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 of the East African Court of Appeal Rules, 1954. Rule 81 of the Court of Appeal Rules, in addition, requires the inclusion of a memorandum of appeal. This statement of the law regarding the status of a notice of appeal was subsequently approved by the Court of Appeal for Eastern Africa in the case of Ujaga Singh v Runda Coffee Estates Ltd [1966] E.A 263. So, quite clearly, the Judge had jurisdiction to entertain the application for review…….”
So that, the Board was at liberty to pursue the option of review of the orders made on 26th September, 2003, despite the filing of a notice of appeal to challenge the same orders.”
22. The said objection is therefore without merit. In any case, as submitted by the Petitioner/Applicant, the objection would appear to me to be of a technical nature and thus afoul the provisions of Article 159 (2)(d) of the Constitution that emphasizes substance over form.
23. Having dismissed the objection, I must now turn to the substance of the application. Does the application have merit? I note at the outset that the application is based on the alleged discovery of new and important evidence that the Petitioner/Applicant is said not to have had at the time the case was heard. I will also consider whether there are any errors apparent on the face of the record, as Ms Kimani seems to imply in her application, as well as the submissions she filed. Additionally, I will also consider if there are other grounds for review.
24. The applicant has averred that she has discovered new evidence which was not within her possession at the time of the trial. Is that the case? I will first examine what amounts to the discovery of new evidence and then consider whether the averments made by the Petitioner/Applicant meet the threshold.
25. The Court of Appeal held in the case of Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), that:-
“Applications on this ground must be treated with great caution and, as required by r 4(2) (b), the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
26. A similar caution was made in the case D.J. Lowe & Company Ltd v Banque Indosuez Civil Appl. Nai. 217 of 1998 (UR) wherein the Court stated as follows:-
“Where such a review application is based on the fact of the discovery of fresh evidence, the court must exercise the greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”
27. The new evidence in this case is the alleged new will found after the hearing by the Petitioner/Applicant. Although a copy of the said will was produced, the manner in which it was discovered was not disclosed, nor was the identity of the person or institution that had possession thereof disclosed. The will names Mr Ephraim Katana as the executor. Mr Katana testified before this Court and made no mention of the will, which he would most likely have been aware of. The validity of the said will has been impugned, on the grounds, inter alia, that the party that drafted it is not disclosed, nor is it stamped.
28. I have looked at the said will. The document is purportedly signed by the deceased in the presence of two named witnesses. It appoints Mr Ephraim Katana as the executor. Based on my review, the will appears to meet the formal requirements for a valid will under the Law of Succession Act.
29. Having said so, and as alluded to earlier, the Petitioner/Applicant hasn''t explained how she came by the said will. As the applicant, she had the duty of showing and proving to this Court that, despite her best efforts, the will could not be produced earlier. I am unable to find that she discharged this burden. This matter had been in Court for a considerable period of time before the delivery of the impugned decision. There was sufficient time within which the said will could have been discovered and adduced in evidence.
30. The Petitioner/Applicant raised several issues regarding my judgment. I must state that I am not sitting in judgment over my earlier decision. The best place for consideration of the merits of the arguments made by Petitioner/Applicant is the appellate Court. It is only the appellate court that can consider whether this Court weighed all the evidence correctly, or if undue weight was given to the DNA report. Those grounds are for appeal, not review. And so I find.
31. In arriving at the foregoing conclusion, I am guided by the decision of the Court in the case of Nyamogo & Nyamogo v Kogo (2001) EA 170 wherein it was held that:-
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review, though it may be one for appeal.”
32. Is there any other sufficient ground to review my decision? In my view, what amounts to “any other sufficient reason” must be understood ejusdem generis. Regarding this ground, I have not found any justification for review. The ground must therefore fail.
33. I will turn once again to the issue of the will. I must point out that if indeed the deceased had a written will, then these proceedings would be defective, as they are not probate proceedings but rather a petition for letters of administration intestate. The validity of the will, in essence, would appear to support the revocation of the grant, as it shows that the grant was made to a person not entitled to bring the petition, and the proceedings were defective.
34. In re Estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR W Musyoka, J stated that:-
“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate, having made a valid will, and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” (emphasis added).
35. Having found that there is no case for review on the grounds based on the discovery of new evidence and that any errors in the judgment of the Court are grounds for appeal rather than review, the application dated 10th February 2025 fails. There is no need for the Court to consider whether the Petitioner/Applicant should have attached a decree or order appealed against. The same is, in my view, moot.
36. What flows from the foregoing is that I have not found merit in the application dated 10th February 2025. I dismiss the same. In light of the nature of this matter, I make no orders as to costs. Each party shall bear its own costs.
37. This Court notes that the Petitioner/Applicant believes strongly in her petition and asserts that she is indeed the daughter of the deceased. Sadly, the evidence before the Court does not appear to support her. Under the circumstances, there is not much that this Court can do for her.
38. I must point out that the finding made herein is not in regard to the provenance or otherwise of the alleged will. Rather, this is only in regard to the question of whether grounds for reviewing my earlier decision have been established. The answer to that question is in the negative.
39. Orders accordingly.
Dated and signed at Mombasa, this 27th day of August 2025. Delivered virtually through Microsoft TEAMS.
'
2. Being dissatisfied with the said decision, the Petitioner/Applicant filed the Notice of Motion dated 10th February 2025 as a pro se litigant. Vide the said application, she sought two orders, to wit that:-
1. That the honourable Court be pleased to review its judgment made on the 28th day of December 2024 (sic!);
2. That the costs of this application be in the cause.
3. The basis for her application is that she had discovered a new and important matters which were not within her knowledge at the time the summons for the revocation of the grant was heard and the decision made, and that she would be greatly prejudiced unless the decision was reviewed.
4. The new documents are an alleged last will and testament of Alfred Liwali Karisa, the deceased person whose estate is the subject of these proceedings, and various ownership documents which the Petitioner/Applicant aver came to her possession on account of her status as the daughter of the deceased. Although it wasn’t expressly stated, it would appear to this Court that the Petitioner/Applicant was of the view that there were errors apparent on the face of the record and or that there were otherwise sufficient reasons to review the judgment of the Court.
5. The application was opposed. The advocates for the Applicant/Respondent filed grounds of opposition dated 25th February 2025, in which it was averred that, having filed a Notice of Appeal, the Petitioner/Applicant could not seek to review the judgment of the Court. In their view, the application was incompetent, an abuse of the Court process, and a waste of judicial time and ought therefore to be struck out.
6. The Applicant/Respondent also filed a replying affidavit sworn by Mr Stephano Furaha Karisa on 25th February 2025, which, in addition to what has been stated, averred that the alleged will lacked formal validity, was not properly drawn, and that the opinion of the doctor could not form the basis for review.
7. In response to the documents filed by the Applicant/Respondent, the Petitioner/Applicant filed a Supplementary Affidavit sworn on 4th March 2025 in which she reiterated that she had obtained new and important evidence that she did not have during the hearing and that the Court proceedings, as reflected in the Judge’s handwritten notes, did not capture all the evidence adduced. She prayed that the application had merit and ought to be allowed.
8. The application was canvassed by way of written submissions. I will briefly outline the submissions of each party below.
9. The submissions of the Petitioner/Applicant are dated 25th March 2025. She urged that the application be allowed because there had been a discovery of new and important evidence that wasn’t available during the trial.
10. The Petitioner/Applicant urged that the Court did not fully consider the evidence of her witness, Mr Ephraim Katana Safari. Ms Kimani submitted that the Court gave undue and unscientific emphasis on the DNA report. She averred that a doctor had reviewed the report and established that the Court was wrong in reaching its conclusion based on the said report. Ms Kimani submitted that the question of whether she could apply for review after filing a Notice of Appeal was a technical matter. She drew the attention of the Court to Article 159 (2) (d) of the Constitution and averred that this Court ought to emphasize substance over form in judicial proceedings.
11. Ms Chichi Kimani therefore prayed that the application be allowed.
12. The submissions of the Applicant/Respondent are dated 18th March 2025. The counsel for the Applicants/Respondents, Mr Lawrence Obonyo, submitted that, having filed a Notice of Appeal, the Petitioner/Applicant could not apply for review. Counsel relied on the case of CHAIRMAN BOARD OF GOVERNORS HIGHWAY SECONDARY SCHOOL v WILLIAM MMOSI MOI [2007] KECA 85 (KLR) for the proposition that an appeal and an application for review could not be pursued concurrently.
13. Counsel urged that the application did not meet the threshold for review. Regarding the alleged will, it was averred that its provenance was questionable as the circumstances under which it was obtained had not been explained. The same, counsel urged, wasn’t drawn by an advocate, was not stamped, and was an afterthought.
14. It was submitted that allowing the application would go against the principle that litigation must come to an end. Mr Obonyo further stated that the applicant had not annexed a copy of the decree or order sought to be reviewed. For the foregoing reasons, he urged that the application be dismissed and that the Applicants/Respondents be awarded costs.
15. This is an application for review. The Petitioner/Applicant seeks to have the Court review its judgment. The Court’s review jurisdiction flows from section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. I shall set out below what each of the said provisions provides.
16. Section 80 of the Civil Procedure Act states as follows:-
“Any person who considers himself aggrieved:-
(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is allowed by this Act,
may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
17. The above provision of the Civil Procedure Act is given effect by Order 45 Rule 1 of the Civil Procedure Rules, which provides as follows:-
“Any person considering himself aggrieved:-
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b)by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
18. What can be distilled from the foregoing is that a review of the decision of the court may be made on the following grounds:-
(a) discovery of new and important evidence which was not within the knowledge of the applicant or could not be produced at the time the orders were passed;
(b) on account of a mistake or error apparent on the face of the record; or
(c) for any other sufficient reason.
19. Why is the review jurisdiction necessary? The Court of Appeal in the case of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR) stated as follows:-
“The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgement of frailties of human nature and sometimes possibility of perversion that may lead to miscarriage of justice. In some jurisdictions, courts have felt the need to cull out such power in order to overcome abuse of process of court or miscarriage of justice. In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason but section 80 gives the High Court greater amplitude for review.”
20. Before looking at the merits of the application, I must address the objection raised by the Applicant/Respondent in the Grounds of Opposition. The objection is to the effect that a party who has filed an appeal may not file an application for review. Whereas this is technically true, as the provision of Order 45 Rule 1 of the Civil Procedure Rules is explicit, a question that arises in this case is whether filing a Notice of Appeal amounts to lodging an appeal. In my opinion, the proposition by the Applicant/Respondent is incorrect.
21. I am guided in my aforesaid finding by the decision of the Court of Appeal in the case of CHAIRMAN BOARD OF GOVERNORS HIGHWAY SECONDARY SCHOOL v WILLIAM MMOSI MOI (supra), where their Lordships stated as follows:-
“ An aggrieved party under Order XLIV of the Civil Procedure Rules can only apply for the review of a decree or order either where ''no appeal has been preferred'' or where ''no appeal is allowed”. An appeal is allowed on orders made under Order 9A r 2 Civil Procedure Rules, as in this case, and indeed the Board filed a notice of appeal under rule 74 of the rules to challenge the orders. A notice of appeal is, however, only a formal notification of an intention to appeal, and it cannot be said that the aggrieved party had “preferred” an appeal at that stage and was thus precluded from exercising the option of review. The issue as to whether a respondent, having filed a notice of appeal which had not been withdrawn, had a right to apply for review was answered in the affirmative by this Court in Yani Haryanto v E. D & F. MAN (SUGAR) Ltd. Civil appeal No. 122/92 (UR). In that case, the application for review under Order 44 of the Civil Procedure Rules was filed two years after the filing of the notice of appeal. After examining the relevant provisions of the law, the court stated:-
“The Court of Appeal for Eastern Africa in the case of Motel Schwetser v Thomas Cunningham & Another (1955) 22 EACA 252, held that an appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 of the East African Court of Appeal Rules, 1954. Rule 81 of the Court of Appeal Rules, in addition, requires the inclusion of a memorandum of appeal. This statement of the law regarding the status of a notice of appeal was subsequently approved by the Court of Appeal for Eastern Africa in the case of Ujaga Singh v Runda Coffee Estates Ltd [1966] E.A 263. So, quite clearly, the Judge had jurisdiction to entertain the application for review…….”
So that, the Board was at liberty to pursue the option of review of the orders made on 26th September, 2003, despite the filing of a notice of appeal to challenge the same orders.”
22. The said objection is therefore without merit. In any case, as submitted by the Petitioner/Applicant, the objection would appear to me to be of a technical nature and thus afoul the provisions of Article 159 (2)(d) of the Constitution that emphasizes substance over form.
23. Having dismissed the objection, I must now turn to the substance of the application. Does the application have merit? I note at the outset that the application is based on the alleged discovery of new and important evidence that the Petitioner/Applicant is said not to have had at the time the case was heard. I will also consider whether there are any errors apparent on the face of the record, as Ms Kimani seems to imply in her application, as well as the submissions she filed. Additionally, I will also consider if there are other grounds for review.
24. The applicant has averred that she has discovered new evidence which was not within her possession at the time of the trial. Is that the case? I will first examine what amounts to the discovery of new evidence and then consider whether the averments made by the Petitioner/Applicant meet the threshold.
25. The Court of Appeal held in the case of Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), that:-
“Applications on this ground must be treated with great caution and, as required by r 4(2) (b), the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”
26. A similar caution was made in the case D.J. Lowe & Company Ltd v Banque Indosuez Civil Appl. Nai. 217 of 1998 (UR) wherein the Court stated as follows:-
“Where such a review application is based on the fact of the discovery of fresh evidence, the court must exercise the greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”
27. The new evidence in this case is the alleged new will found after the hearing by the Petitioner/Applicant. Although a copy of the said will was produced, the manner in which it was discovered was not disclosed, nor was the identity of the person or institution that had possession thereof disclosed. The will names Mr Ephraim Katana as the executor. Mr Katana testified before this Court and made no mention of the will, which he would most likely have been aware of. The validity of the said will has been impugned, on the grounds, inter alia, that the party that drafted it is not disclosed, nor is it stamped.
28. I have looked at the said will. The document is purportedly signed by the deceased in the presence of two named witnesses. It appoints Mr Ephraim Katana as the executor. Based on my review, the will appears to meet the formal requirements for a valid will under the Law of Succession Act.
29. Having said so, and as alluded to earlier, the Petitioner/Applicant hasn''t explained how she came by the said will. As the applicant, she had the duty of showing and proving to this Court that, despite her best efforts, the will could not be produced earlier. I am unable to find that she discharged this burden. This matter had been in Court for a considerable period of time before the delivery of the impugned decision. There was sufficient time within which the said will could have been discovered and adduced in evidence.
30. The Petitioner/Applicant raised several issues regarding my judgment. I must state that I am not sitting in judgment over my earlier decision. The best place for consideration of the merits of the arguments made by Petitioner/Applicant is the appellate Court. It is only the appellate court that can consider whether this Court weighed all the evidence correctly, or if undue weight was given to the DNA report. Those grounds are for appeal, not review. And so I find.
31. In arriving at the foregoing conclusion, I am guided by the decision of the Court in the case of Nyamogo & Nyamogo v Kogo (2001) EA 170 wherein it was held that:-
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review, though it may be one for appeal.”
32. Is there any other sufficient ground to review my decision? In my view, what amounts to “any other sufficient reason” must be understood ejusdem generis. Regarding this ground, I have not found any justification for review. The ground must therefore fail.
33. I will turn once again to the issue of the will. I must point out that if indeed the deceased had a written will, then these proceedings would be defective, as they are not probate proceedings but rather a petition for letters of administration intestate. The validity of the will, in essence, would appear to support the revocation of the grant, as it shows that the grant was made to a person not entitled to bring the petition, and the proceedings were defective.
34. In re Estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR W Musyoka, J stated that:-
“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate, having made a valid will, and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” (emphasis added).
35. Having found that there is no case for review on the grounds based on the discovery of new evidence and that any errors in the judgment of the Court are grounds for appeal rather than review, the application dated 10th February 2025 fails. There is no need for the Court to consider whether the Petitioner/Applicant should have attached a decree or order appealed against. The same is, in my view, moot.
36. What flows from the foregoing is that I have not found merit in the application dated 10th February 2025. I dismiss the same. In light of the nature of this matter, I make no orders as to costs. Each party shall bear its own costs.
37. This Court notes that the Petitioner/Applicant believes strongly in her petition and asserts that she is indeed the daughter of the deceased. Sadly, the evidence before the Court does not appear to support her. Under the circumstances, there is not much that this Court can do for her.
38. I must point out that the finding made herein is not in regard to the provenance or otherwise of the alleged will. Rather, this is only in regard to the question of whether grounds for reviewing my earlier decision have been established. The answer to that question is in the negative.
39. Orders accordingly.
Dated and signed at Mombasa, this 27th day of August 2025. Delivered virtually through Microsoft TEAMS.
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